Saint-Pierre v. Saint-Pierre

• Decision Date: 13 November 1984
• Docket Number: D,Nos. 14271,14291,P,SAINT-PIERR,s. 14271
• Citation: 357 N.W.2d 250
• Parties: Ruth M.laintiff and Appellant, v. Mark S.efendant and Appellee.
• Court: South Dakota Supreme Court

Page 250

357 N.W.2d 250

Ruth M. SAINT-PIERRE, Plaintiff and Appellant, v. Mark S. SAINT-PIERRE, Defendant and Appellee.

Nos. 14271, 14291.

Supreme Court of South Dakota.

Argued March 19, 1984.

Decided Oct. 3, 1984.

Rehearing Denied Nov. 13, 1984.

Ann C. Jones of Banks & Johnson, Rapid City, for plaintiff and appellant.

Roberta J. Earley, Belle Fourche, for defendant and appellee.

WOLLMAN, Justice.

The trial court entered judgment granting both parties a divorce on the ground of extreme mental cruelty. Plaintiff, Dr. Ruth M. Saint-Pierre, appeals from the judgment. In turn, defendant, Mark S. Saint-Pierre, has filed a notice of review with respect to certain provisions of that judgment. We affirm in part and reverse and remand in part.

We note that the trial that culminated in the judgment being appealed from consisted of some ten days of testimony, resulting in 1,726 pages of transcript. ^* Our task of summarizing the evidence introduced at this lengthy trial has been made easier by virtue of the trial court's memorandum decision, incorporated into the findings of fact and conclusions of law.

Plaintiff and defendant were married on November 20, 1971. At the time of trial, March 1983, they were both 32 years of age.

Two children were born to the marriage, a daughter, born January 25, 1974, and a son, was born September 23, 1975.

At the time of their marriage, the parties were college students. Following their graduation from college in May of 1972, defendant obtained employment with the Sioux Youth Development Association in Eagle Butte, South Dakota, in late summer of 1972. Plaintiff obtained employment in Eagle Butte as a teacher's aide. In the spring of 1973, defendant became employed with the Cheyenne River Sioux Tribe.

Plaintiff was accepted as a student in the University of South Dakota School of Medicine, and the parties moved to Vermillion in late summer of 1974. Defendant obtained employment with the University of South Dakota School of Education in September of 1974 at a salary of $11,500 per year. Defendant later worked at the Division of Allied Health and in the Indian Studies Program at a salary of $17,500 per year. He also wrote a book on Indian art and earned his master of arts degree during the time that plaintiff was earning her medical degree.

Plaintiff received a waiver of her tuition in return for her agreement that she would practice medicine in South Dakota. She also received student loans in the amount of $350 to $400 per month for other school expenses. Plaintiff graduated from medical school in June of 1978. The parties then moved from Vermillion to Yankton, where plaintiff completed her residency training. Upon the completion of plaintiff's residency, the parties purchased some property in the Trojan community near Deadwood, where defendant commenced building a home while plaintiff began practicing medicine in Eagle Butte as a part of her three-year commitment to pay off her student loans. Although defendant made a desultory attempt to find employment in Eagle Butte, he soon became depressed and ceased his search for employment, whereupon plaintiff suggested that he return to their property at Trojan and work on their house, which he did. Plaintiff became frustrated with her practice in Eagle Butte and moved to the family home in Trojan, where she became associated in the practice of medicine with the Black Hills Medical Center in Deadwood.

The parties' marriage was a stormy one. The trial court found that both parties had inflicted extreme mental suffering upon the other. The record reveals that in December of 1982 defendant struck plaintiff in the eye with such force that she was required to seek medical attention.

The trial court awarded custody of the children to defendant and ordered plaintiff to pay $400 per month per child in the way of child support. The trial court divided the marital property and denied both parties' claims for alimony and attorney fees. The issues raised by plaintiff's appeal and defendant's notice of review cover the areas of child custody, valuation and division of property, the amount of child support, and the denial of defendant's claim for attorney fees and alimony.

CHILD CUSTODY

Plaintiff contends that the trial court abused its discretion in awarding custody of the two minor children to defendant. The trial court found the custody question to be a most troublesome issue in view of the testimony to the effect that both parties have rather volatile personalities and appear to be somewhat self-centered individuals. The trial court had the benefit of In addition to considering the report from the Department of Social Services, the court had the benefit of the in-court sworn testimony of most of the persons who had been interviewed by the Department's social workers.

a home study report prepared by the South Dakota Department of Social Services. This report recommended that custody of the children be awarded to plaintiff. The trial court also had before it a report from Dr. James Hess, a Spearfish, South Dakota, psychologist who had interviewed the children and who had administered psychological tests to the children and to defendant. In Dr. Hess' opinion, defendant has a healthy, loving relationship with his children. The report stated that the children had expressed to Dr. Hess a desire to live with defendant and appeared to have a very positive relationship with defendant.

Notwithstanding its concern over defendant's behavior towards plaintiff in the presence of the children during the months immediately prior to trial, as well as the concern generated by defendant's demeanor during the course of the divorce trial, the trial court found that it would be in the best interests of the children that they be placed in the custody of defendant, subject to liberal visitation rights in plaintiff. The court further found that the best interests of the children would be served by the court's reviewing the custody arrangement one year from the date of entry of judgment. Accordingly, the decree of divorce provides in part that

Defendant is awarded the temporary care, custody and control of the minor children of the marriage for a period of one year, at which time the Court shall review the custody of the children upon application of either party.

Before considering the merits of the custody decision, we must dispose of defendant's contention that because the custody order is temporary in nature, it could be appealed only in accordance with SDCL 15-26A-13, a procedure that plaintiff did not follow. We do not agree. Granted that the custody provision of the divorce decree is unusual insofar as the trial court indicated its willingness to review the matter of custody after the period of one year upon the application of either party, SDCL 25-4-45 provides that in divorce actions the trial court may at any time after judgment vacate or modify its order granting custody over the children of the marriage. In a technical sense, then, all custody orders are temporary inasmuch as they are always subject to being modified, subject, of course, to the prerequisite showing of a substantial and material change in circumstances. See, e.g., Sneesby v. Davis, 308 N.W.2d 565 (S.D.1981); Engels v. Engels, 297 N.W.2d 489 (S.D.1980); Menning v. Menning, 272 N.W.2d 828 (S.D.1978); Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976). Though temporary in this sense, custody orders do not lapse or become ineffective merely by the passage of time. As we read it, the custody award provision of the divorce decree before us does nothing more than spell out the trial court's amenability to a review of custody after the expiration of one year. Accordingly, we conclude that the custody award falls within the classification of those judgments and orders that are appealable as a matter of right under the provisions of SDCL 15-26A-3(4). In any event, on an appeal from a judgment, we may review any determination by the trial court. SDCL 15-26A-7.

Turning, then, to the merits of the custody award, we apply the well-settled rules of appellate review to the effect that the trial court has broad discretion in awarding custody of minor children, and that the trial court's decision regarding custody will be reversed on appeal only upon a clear showing of an abuse of that discretion. See, e.g., Wolff v. Wolff, 349 N.W.2d 656 (S.D.1984); Watt v. Watt, 312 N.W.2d 707 (S.D.1981); Engels v. Engels, supra; Haskell v. Haskell, 279 N.W.2d 903 (S.D.1979); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979).

The paramount consideration in deciding the issue of child custody is the best interests of the child. SDCL 30-27-19; Wolff v After viewing the voluminous record in the light of the foregoing principles of appellate review, we cannot say that the trial court's findings of fact that resulted in an award of custody of the children to defendant are clearly erroneous. In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). Without belaboring the evidence, we agree with the trial court's observation that there is considerable testimony in the record to the effect that defendant was more involved than plaintiff with the day-to-day parenting duties during the years when plaintiff was a medical student, as he has been during the time that plaintiff has been engaged in the practice of medicine. Likewise, not surprisingly there is testimony that plaintiff's professional obligations limit the time she has available to be with the children. There is evidence these obligations cause plaintiff considerable stress. Moreover, the evidence supports the trial court's finding that defendant better meets the emotional needs of the children, while plaintiff better satisfies their basic physical needs.

Wolff, supra; Haak v. Haak, 323 N.W.2d 128 (S.D.1982); Watt v. Watt, supra.

It quite clearly appears from the record that both parties are highly intelligent, highly motivated, highly goal-oriented,...